'I was not sure NPA's prospects of success were strong enough for a winnable case against Zuma,' Ngcuka says in court papers
13 March 2019
Although there was a prima facie case of corruption against former president Jacob Zuma more than 10 years ago, it was doubtful the National Prosecuting Authority's (NPA) prospects of success were strong enough for a "winnable" case.
This is according to former National Director of Public Prosecutions (NDPP) advocate Bulelani Ngcuka in an affidavit filed in the KwaZulu-Natal High Court.
In the affidavit, Ngcuka explains the decision he took not to prosecute Zuma alongside his former financial advisor and convicted fraudster Shabir Shaik and French arms company Thales.
"I was not sure the NPA's prospects of success were strong enough for a winnable case," he said.
Other former NDPPs who filed affidavits include advocates Vusi Pikoli and Shaun Abrahams. Mokotedi Mpshe and former Scorpions heard Leonard McCarthy have, however, refused to consult with the State.
Ngcuka states in his affidavit that most of the members of the advisory team including him and McCarthy came to the conclusion that "while there was prima facie evidence of corruption by Mr Zuma, it was doubtful the NPA would be able to prove the charges of corruption against him as opposed to against [fraudster Shabir] Shaik, his Nkobi companies and the Thales company".
He said the reason he decided not to prosecute Zuma was because, after considering the matter carefully, he had reached the conclusion that the NPA did not have a winnable case against him.
Ngcuka also said he believed that the decision to prosecute at that stage would "worsen the already tense political climate and may even lead to political violence".
Zuma affidavit
But in his affidavit, former president Zuma argued that Ngcuka continued to "manipulate" and "connived" with McCarthy to align the prosecution with political agenda even after he (Ngcuka) left the NPA. Zuma said this was designed to affect his chances of becoming ANC president.
"The content of the spy tapes bear testimony to this tragic fact," Zuma said.
Zuma filed a 300-page affidavit, asking for a permanent stay of prosecution.
The former president alleges that Ngcuka devised and implemented a strategy aimed at stopping him from being elected as the president of the ANC and of the country.
He claimed he was a victim of an orchestrated attempt by the NPA to link him to corruption.
"It is disconcerting to consider the statements made by the NPA to the press in the run-up and aftermath of the Polokwane elections in that context," he said.
Zuma said it was with a "heavy heart" that he has been the victim of prosecutorial misconduct and an inordinate delay in bringing him to trial.
"The much-publicised spy tapes attest to the most grotesque political manipulation and interference ever experienced in the post-apartheid criminal justice system.
"From the day when Ngcuka announced that there was a prima facie case but not a winnable one, the events that followed are replete with instances of political manipulation," Zuma argued.
But Ngcuka said in his affidavit that he and McCarthy had a discussion about whether it would be wise to charge Zuma before the Polokwane conference.
He said McCarthy told him the prosecution team was pressing for Zuma to be charged without delay.
"I consistently told him it would be wrong to charge Mr Zuma on the eve of the conference.
"I believed it would have given rise to the perception that the NPA was trying to prevent Mr Zuma from being elected as the president of the ANC, which in turn would undermine the public’s confidence in the NPA as an independent institution," he said.
He also disputed Zuma's allegations that in August 2003 he decided not to prosecute so as to allow the Shaik trial to run without him - and in so doing to allow the prosecution to present and "elicit in public damning evidence" about dealings with Shaik, Nkobi group and Thales without him having the opportunity to cross-examine the witnesses and to give his version.
"These allegations are devoid of any truth," Ngcuka said.
May court date
During Zuma's last appearance in the KwaZulu-Natal High Court in Pietermaritzburg on November 30, 2018, Deputy Judge Mjabuliseni Madondo ordered that the permanent stay of prosecution arguments, together with criminal proceedings, be heard on May 20.
Thales, the arms company implicated with Zuma, also filed its application in the High Court to have the prosecution permanently set aside.
It claimed that it had been denied a fair trial because of unreasonable delays, and that its right to present and challenge evidence had also been denied.
Zuma faces serious charges, including one count of racketeering, two counts of corruption, one count of money laundering, and 12 counts of fraud relating to 783 payments he allegedly received in connection with the controversial arms deal.
